Thursday, July 14, 2011

Clemens - The Game Should Have Been Played

I must respectfully disagree with my colleague. (see here)

The judge appears to me to have jumped the gun. The defense, shown the videotape ahead of time, made no motion to redact. It didn’t object when it was shown to the jury. Apparently, the defense didn’t see it as harmful. Most likely, as Clemens said before Congress, the defense will agree that Pettite (Clemens’ good friend) was honest but argue that he was mistaken about what Clemens said (and I wouldn’t be surprised if Pettite admits he might have misunderstood Clemens), and thus the hearsay evidence as to what Pettite told his wife didn’t bother the defense.

Perjury cases, especially those involving investigations and grand jury proceedings, often include hearsay in questions: "Mr. Jones testified as to x; do you agree, Mr. Witness?" And, a curative instruction that the fact that a question assumed something happened is no evidence that it did happen is considered sufficient.

To be sure, this instance is somewhat different since the judge had previously told the prosecutor that Mrs. Pettite’s proposed testimony was inadmissible. And, probably most importantly, the judge was irked by the prosecutor’s opening that mentioned that Clemens’ teammates used steroids in seeming disregard of his ruling that such testimony was inadmissible – to me, apparently a much more blatant error.

I am happy to see a judge assert his authority and strongly react to a prosecutor’s disregard of his rulings. Most do it too gently. I do think, however, based on what I know at this time, that the judge may have overreacted.

Since the defense apparently moved for a mistrial and since it is unlikely that the defense will be able to demonstrate that the prosecutorial misconduct was designed to force the defense to do so, I doubt that double jeopardy will lie. Thus, at the end of the day – or the summer – Clemens may not really benefit, as Ellen says. And besides the additional cost and loss of a possibly favorable jury Ellen mentions, there is a psychological cost to a defendant, even a Texas tough guy like Roger Clemens, to get ready again to defend himself.

Of course, even assuming that Clemens did lie, I have mixed thoughts about whether this prosecution should have been brought in the first place. Perhaps we will discuss that later.


Addendum - A later press report here indicates that Judge Walton specifically instructed the prosecutors to eliminate mention of Mrs. Pettite's statements in the videotape. If so, the prosecutor's misconduct , however inadvertent, is more egregious and the judge's mistrial declaration more justifiable than I had believed based on early press reports, although I still think that the error could have been cured, and the prosecutor adequately "punished," by a strong curative instruction. Nonetheless, perhaps I, and not Judge Walton, jumped the gun.  (lsg)

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